Top 5 Reasons Californians Still End Up in Probate and How to Avoid It

Probate can be one of the most stressful and time consuming parts of settling an estate. In California, the probate court process can easily take a year or more. During that time, access to assets may be frozen, costs continue to add up, and families are forced to deal with paperwork and court oversight while they are still grieving.

The good news is that most probate cases are completely avoidable with a properly created and maintained estate plan.

At Pevney Estate Planning, we meet with families throughout Orange County who believe they have done the right thing but later discover that probate is still required. In many cases, probate happens not because planning was ignored, but because one critical step was missed.

Understanding these common mistakes can help you make sure your estate plan works smoothly and privately when your family needs it most.

1. The Living Trust Was Never Funded

A revocable living trust is one of the most effective tools for avoiding probate in California. However, the trust only works if it is properly funded.

Funding a trust means changing ownership of assets so they are legally owned by the trust rather than by you individually. Many people sign their trust documents but never complete this step. As a result, their home, bank accounts, or investments remain in their personal name and must still go through probate.

This is one of the most common reasons Californians still end up in probate even though they have a trust.

How to avoid it

After creating your trust, you must retitle your real estate, financial accounts, and other major assets into the name of the trust. You should also make sure new assets are added as they are acquired. Living trusts in Orange County

2. Beneficiary Designations Were Never Updated

Beneficiary designations override wills and trusts. Life insurance policies, retirement accounts, and many bank accounts pass directly to the named beneficiary.

Problems arise when those designations are outdated. A former spouse, a deceased parent, or a forgotten designation can cause assets to pass in unintended ways or even fall back into the probate estate.

This mistake happens frequently after marriage, divorce, or the birth of children.

How to avoid it

Review your beneficiary designations every few years and after any major life change. Make sure the correct people or your trust are listed. Life insurance in an estate plan

3. Relying on Joint Ownership Alone

Joint ownership is often used as a shortcut to avoid probate, especially between spouses. While joint tenancy with right of survivorship does allow property to pass to the surviving owner, it does not eliminate probate forever.

When the surviving owner later passes away, the property must still go through probate unless it has been placed into a trust. This often surprises families who believed joint ownership was enough.

Joint ownership with someone other than a spouse can also create serious risks, including exposure to lawsuits, creditor claims, and capital gains tax issues.

How to avoid it

A revocable living trust provides long term protection. The trust avoids probate at both deaths and keeps control in your hands. Avoid probate with joint ownership risks explained

4. No Backup Plan for Minors or Deceased Beneficiaries

Leaving assets directly to minors or failing to plan for a beneficiary who passes away can result in court involvement. When a minor inherits outright, the court must appoint a guardian or conservator to manage the funds until adulthood.

This process is costly, time consuming, and completely avoidable.

How to avoid it

Naming your living trust as beneficiary allows you to control how and when assets are distributed. You can provide for education, health care, and support while delaying large distributions until your child is mature. Estate planning for families

5. Relying Only on a Will

A will does not avoid probate in California. All wills must be submitted to probate court for administration.

Families are often shocked to learn that having a will still triggers court involvement, attorney fees, and public filings.

How to avoid it

A revocable living trust transfers assets privately and efficiently without court supervision. Trust vs will explained

Why Probate Is So Common in California

California probate is required when assets lack a legal transfer mechanism. Probate also comes with statutory fees based on the gross value of the estate, not the equity. California probate costs explained

Key Takeaways

• Many Californians still end up in probate due to avoidable planning mistakes
• A trust must be funded to work properly
• Beneficiary designations must be kept current
• Joint ownership alone does not eliminate probate
• Wills still require probate in California
• A living trust offers privacy, speed, and control
• Regular reviews keep your plan effective

Frequently Asked Questions

Does a living trust automatically avoid probate?

Only if assets are properly titled in the trust.

Is probate required even if there is a will?

Yes. A will must go through probate in California.

How long does probate take?

Often twelve to twenty four months or longer.

Can probate be avoided completely?

Yes. A funded living trust and proper beneficiary designations avoid probate.

How often should an estate plan be reviewed?

Every three to five years or after major life changes.

Final Thoughts

Probate takes time, privacy, and resources away from your family. The right estate plan prevents court involvement and ensures your wishes are honored.

If you live in Orange County or anywhere in California, now is the right time to review your plan and make sure it truly works.

Schedule Your Free 30 Minute Strategy Session

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